Lawyer Monthly - October 2021 Edition

WWW.LAWYER-MONTHLY.COM 35 What Potential Reforms Have Been Identified? What Are The Odds Of These Changes Coming Into Effect? The first and most obvious step that could be taken towards redressing the politicised nature of the Supreme Court would be to impose either an age or term length limit on justices. Assuming this could be judged to be constitutionally sound, the move would constitute a significant step towards erasing the political impetus to stack the court with ideologically sympathetic nominees. Another significant shake-up of the court might involve expanding the number of seats, potentially increasing the body of serving justices from nine to 12 (like its UK counterpart) or a different number. While this would not eliminate the ideologically charged nature of the nomination process, it would dilute the power of individual justices and lessen the political gravity of their appointment to the court. On a different tack, attention has also been drawn to the surging usage of the so-called “shadow docket”, the emergency process which allowed the Supreme Court to make a decision on the Texas Heartbeat Act within 72 hours and without issuing oral arguments. While not a holistic overhaul of the court, measures to restrict the court’s usage of this power would go some way towards restricting its ability to make contentious rulings without scrutiny. A House of Representatives hearing earlier this year appeared to show some bipartisan interest in addressing the shadow docket, but this has since faded as discourse around the court’s decision on the Heartbeat Act drew political battle lines on the issue. The greatest obstacle to altering the length of justices’ terms is the Constitution itself. Article III’s “good behaviour” stipulation has always been interpreted to mean an indefinite term on the bench, and legal experts doubt this obstacle could be overcome save by an unprecedented constitutional amendment – which would require the support of two-thirds of Congress and three quarters of the states. From the standpoint of political desire for reform, the outlook for progressive lawmakers appears dim. As with attitudes towards the shadow docket, tendencies towards altering the essence of the court are polarised. Supreme Court reform is not an explicit part of either the Democratic or Republican platforms, and only a minority of lawmakers from the former party have voiced open support for such policies. Several Democrat Representatives proposed H.R. 5140, a bill that might circumvent the need to amend the Constitution by instead requiring that Supreme Court justices become “Senior Justices” after 18 years of service with presidents appointing a new justice every two years, but minimal support was expressed for it. Moreover, President Biden has been guarded on the subject of Supreme Court reform. In April he launched a bipartisan commission to study the merits of proposed measures to reform the court, including the addition of seats, though the bipartisan nature of the committee renders it unlikely to recommend sweeping changes to the judicial branch. Biden has made few statements relating to his own stance, though White House press secretary Jen Psaki told reporters that it “has not changed” following the court’s refusal to block the Texas abortion bill, which he has attacked as an “unprecedented assault on a woman’s constitutional rights”. Ultimately, however, even should there be a significant appetite among the executive and legislative branches for Supreme Court reform, the constraints of government may prove impossible to overcome. With their slim 50-seat majority in the Senate, with Vice President Kamala Harris breaking ties, any aggressive partisan move to alter the composition of the court would have little chance of success – particularly while Senator Joe Manchin and other lawmakers have voiced opposition to eliminating the legislative filibuster, a necessary first step for the Democrats to implement large-scale reforms. To bring real change to the Supreme Court will require a good deal more vocal support from Congress and prospective voters alike. Although a true cross- party effort to address common frustrations with the SCOTUS may not be feasible at the moment, it is impossible to guess how heightened scrutiny of the court – and a potential power shift following the 2022 midterm elections – may yet change lawmakers’ priorities.

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